Filed 2/24/16 P. v. Smith CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN BENNETT SMITH, JR.,

Defendant and Appellant. D068253

(Super. Ct. No. SCD259250)

APPEAL from an order of the Superior Court of San Diego County, Kathleen M.

Lewis, Judge. Affirmed.

Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Respondent.

John Bennett Smith, Jr.

, was charged in a felony complaint with first degree

burglary of an inhabited dwelling house (Pen. Code

, 1 §§ 459, 460). The complaint also

1 All statutory references are to the Penal Code unless otherwise specified. When referring to statutory subparts of that code, the word " subdivision " is omitted.2

alleged Smith had suffered three prison priors within the meaning of sections 667.5(b)

and 668, two serious felony priors within the meaning of sections 667(a)(1), 668, and

1192.7(c), and that pursuant to sections 667(b) through (i), 1170.12 and 668, Smith had

suffered three strike prior s

.

Smith thereafter pleaded guilty to second degree burgl ary (§ 459) and one strike

prior, a conviction in 2009 for making criminal threats (§ 422)

. In exchange for the plea,

the balance of the charges were dismissed

, and the court sentenced Smith to a stipulated

six

- year term in state prison.

The abstract of judgment filed on January 13, 2015

, misstated the offense as first

degree burglary . U pon being advised of the error, the court corrected the abstract on

March 11, 2015

, to correctly state the conviction as second degree burglary.

The clerk ' s transcript c ontains handwritten letters from Smith to the court. The

first letter, filed March 1 7 , 2015, concerns Smith ' s request that his sentence be reduced to

four years based on the error in the abstract of judgment. On March 18, 2015, the court

construed Smith ' s request to modify his sentence as a request to recall the sentence under

s ection 1170(d) and denied Smith ' s request, finding it to be " without merit. " 2

2 Section 1170(d)(1) provides: " When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the
date o f commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence

an d commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no3

In another letter, filed March 20, 2015, Smith as s erted that his sentence should be

reduced to two years, based on his belief that only a one

- year sentence may be imposed

for second degree burglary, doubled to two years by the one strike prior. In this letter,

Smith also asserted that his six

- year sentence under t he plea agreement " is illegal " and

state d he was " disputing the deal. " Smith ' s March 20, 2015 letter also assert ed that his

conviction should be designated as a misdemeanor under Proposition 47.

On April 13, 2015, the court entered an order denying Smith ' s request for

resentencing under Proposition 47, determining that no counts were eligible under section

1170.18.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d

436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 ( An ders ) indicating she is

unable to find any arguable issues for reversal on appeal. Counsel requests this court to

review the record for error as required by Wende . We granted Smith the opportunity to

file a supplemental brief and he has not responded.

FA CTUAL BACKGROUND

Smith entered into the plea agreement before any trial or preliminary hearing.

Therefore, the only description of facts underlying the conviction comes from the

probation report, issued after the plea was entered. According to that prob ation report,

Smith was living in an apartment building in San Diego. S urveillance cameras recorded

Smith entering another person ' s room and exiting with a laptop computer. When

greater than the initial sentence. The court resentencing under this subdivision sh all apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served. "4

questioned by the police, Smith showed them t he computer, and it was returne d to its

owner.

DISCUSSION

As required by Anders, supra , 386 U.S. 738, counsel has set forth two possible,

but not arguable

, issues:

1. Is Smith ' s six

- year sentence for second degree burglary lawful?
Counsel cites sections 422, 4 61(b), 1170(h) and 1192.7(c)(38).

2. Is Smith ' s conviction eligible for redesignation to a misdemeanor
under section 1170.18? Counsel cites sections 459, 459.5, and

1170.18.

We have reviewed the entire record as mandated by Wende

, supra , 25 Cal.3d 436,

and Anders, supr

a , 386 U.S. 738, and have not discovered any reasonably arguable issues

for reversal on appeal. The three

- year term imposed for Smith ' s second degree burglary

conviction is authorized by sections 461(b) and 1170(h)(1) 3 and that term was properly

doubled i n this case to six years as a result of Smith ' s strike prior

, which he admitted as

part of his plea bargain

. (§ § 667(d)(1), (e)(1), 1192.7(c)(38).) 4 Smith ' s conviction

3 Section 461(b) provides that burglary in the second degree is punishable " by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170. " Section 1170(h) (1) provides in part: " [A] felony punishable pursuant to this subdivision where the term is not specified in the underl ying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. "

4 Section 667(d)(1) provides in part that " a prior conviction of a serious

. . . felony
shall be defined as: [¶] ' A ny offense

. . . defined in subdivision (c) of section 1192.7 as a serious felony in this state. '" Section 667(e)(1) provides: " For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the5

involved burglary of a residential dwelling, not shoplifting from a " commercial

establi shment, " and was therefore ineligible for resentencing under section s 1170.18 and

459.5

. 5 As noted, the abstract of judgment was corrected to reflect second degree

burglary. Competent counsel has represented Smith on this appeal.

fo llowing shall apply where a defendant has one or more prior serious and/or violent felony convictions: [¶] (1) If a defendant has one prior serious and/or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determina te
term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. " Section 1192.7(c)(38) provides: " As used in this section, ' serious felony ' means any of the following : [¶]

. . . (38) criminal threats, in violation of S ection 422. "

5 Section 1170.18 provides in part: " (a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under the act that added this sect ion ( ' this act ' ) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in
accordanc e with Sections 11350

, 11357 , or 11377 of the Health and Safety Code , or Section 459.5

, 473

, 476a

, 490.2

, 496 , or 666 of the Penal Code , as those sections have been amended or added by this act. " Section 459.5 provides: " (a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that
is taken or intended to be taken does not exceed nine hundred f ifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section
1170. [¶] (b) Any act of shoplifting as defin ed in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property. "6 DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.